[NOTE: In 1997, the Securities and Exchange Commission proposed to dramatically weaken the ability of shareholders to file resolutions. As a result of thousands of comments opposing their proposed changes to Rule 14a-8, the SEC reissued this rule with some modifications in the Federal Register on 28 May 1998 (pp. 29106-29121).
". . .Nevada has launched an aggressive campaign to lure companies. 'It's about cutting red tape by getting out of the way,' says Nevada Secretary of State Dean Heller. One big selling point: no corporate income tax." - USA Today, 5 March 1997, p. 3B
Securities and Exchange Commission
Shareholder Regulations (Rule 14a-8)
17 CFR Part 240.14a-8. Proposals of Security Holders
- Shareholder Proposals §240.14a-8. This section addresses when a company must include a shareholder's proposal in its proxy statement and identify the proposal in its form of proxy when the company holds an annual or special meeting of shareholders. In summary, in order to have your shareholder proposal included on a company's proxy card, and included along with any supporting statement in its proxy statement, you must be eligible and follow certain procedures. Under a few specific circumstances, the company is permitted to exclude your proposal, but only after submitting its reasons to the Commission. We structured this section in a question-and-answer format so that it is easier to understand. The references to "you" are to a shareholder seeking to submit the proposal.
(a) Question 1: What is a proposal?
- A shareholder proposal is your recommendation or requirement that the company and/or its board of directors take action, which you intend to present at a meeting of the company's shareholders. Your proposal should state as clearly as possible the course of action that you believe the company should follow. If your proposal is placed on the company's proxy card, the company must also provide in the form of proxy means for shareholders to specify by boxes a choice between approval or disapproval, or abstention. Unless otherwise indicated, the word "proposal" as used in this section refers both to your proposal, and to your corresponding statement in support of your proposal (if any).
- (b) Question 2: Who is eligible to submit a proposal, and how do I demonstrate to the company that I am eligible?
(1) In order to be eligible to submit a proposal, you must have continuously held at least $2,000 in market value, or 1%, of the company's securities entitled to be voted on the proposal at the meeting for at least one year by the date you submit the proposal. You must continue to hold those securities through the date of the meeting.
- (2) If you are the registered holder of your securities, which means that your name appears in the company's records as a shareholder, the company can verify your eligibility on its own, although you will still have to provide the company with a written statement that you intend to continue to hold the securities through the date of the meeting of shareholders. However, if like many shareholders you are not a registered holder, the company likely does not know that you are a shareholder, or how many shares you own. In this case, at the time you submit your proposal, you must prove your eligibility to the company in one of two ways:
(i) The first way is to submit to the company a written statement from the "record" holder of your securities (usually a broker or bank) verifying that, at the time you submitted your proposal, you continuously held the securities for at least one year. You must also include your own written statement that you intend to continue to hold the securities through the date of the meeting of shareholders; or
- (ii) The second way to prove ownership applies only if you have filed a Schedule 13D (§240.13d-101), Schedule 13G (§240.13d-102), Form 3 (§249.103 of this chapter), Form 4 (§249.104 of this chapter) and/or Form 5 (§249.105 of this chapter), or amendments to those documents or updated forms, reflecting your ownership of the shares as of or before the date on which the one-year eligibility period begins. If you have filed one of these documents with the SEC, you may demonstrate your eligibility by submitting to the company:
(A) A copy of the schedule and/or form, and any subsequent amendments reporting a change in your ownership level;
- (B) Your written statement that you continuously held the required number of shares for the one-year period as of the date of the statement; and
- (C) Your written statement that you intend to continue ownership of the shares through the date of the company's annual or special meeting.
- (c) Question 3: How many proposals may I submit?
- Each shareholder may submit no more than one proposal to a company for a particular shareholders' meeting.
- (d) Question 4: How long can my proposal be?
- The proposal, including any accompanying supporting statement, may not exceed 500 words.
- (e) Question 5: What is the deadline for submitting a proposal?
(1) If you are submitting your proposal for the company's annual meeting, you can in most cases find the deadline in last year's proxy statement. However, if the company did not hold an annual meeting last year, or has changed the date of its meeting for this year more than 30 days from last year's meeting, you can usually find the deadline in one of the company's quarterly reports on Form 10-Q (§249.308a of this chapter) or 10-QSB (§249.308b of this chapter), or in shareholder reports of investment companies under §270.30d-1 of this chapter of the Investment Company Act of 1940. In order to avoid controversy, shareholders should submit their proposals by means, including electronic means, that permit them to prove the date of delivery.
- (2) The deadline is calculated in the following manner if the proposal is submitted for a regularly scheduled annual meeting. The proposal must be received at the company's principal executive offices not less than 120 calendar days before the date of the company's proxy statement released to shareholders in connection with the previous year's annual meeting. However, if the company did not hold an annual meeting the previous year, or if the date of this year's annual meeting has been changed by more than 30 days from the date of the previous year's meeting, then the deadline is a reasonable time before the company begins to print and mail its proxy materials.
- (3) If you are submitting your proposal for a meeting of shareholders other than a regularly scheduled annual meeting, the deadline is a reasonable time before the company begins to print and mail its proxy materials.
- (f) Question 6: What if I fail to follow one of the eligibility or procedural requirements explained in answers to Questions 1 through 4 of this section?
(1) The company may exclude your proposal, but only after it has notified you of the problem, and you have failed adequately to correct it. Within 14 calendar days of receiving your proposal, the company must notify you in writing of any procedural or eligibility deficiencies, as well as of the time frame for your response. Your response must be postmarked , or transmitted electronically, no later than 14 days from the date you received the company's notification. A company need not provide you such notice of a deficiency if the deficiency cannot be remedied, such as if you fail to submit a proposal by the company's properly determined deadline. If the company intends to exclude the proposal, it will later have to make a submission under §240.14a-8 and provide you with a copy under Question 10 below, §240.14a-8(j).
- (2) If you fail in your promise to hold the required number of securities through the date of the meeting of shareholders, then the company will be permitted to exclude all of your proposals from its proxy materials for any meeting held in the following two calendar years.
- (g) Question 7: Who has the burden of persuading the Commission or its staff that my proposal can be excluded?
- Except as otherwise noted, the burden is on the company to demonstrate that it is entitled to exclude a proposal.
- (h) Question 8: Must I appear personally at the shareholders' meeting to present the proposal?
(1) Either you, or your representative who is qualified under state law to present the proposal on your behalf, must attend the meeting to present the proposal. Whether you attend the meeting yourself or send a qualified representative to the meeting in your place, you should make sure that you, or your representative, follow the proper state law procedures for attending the meeting and/or presenting your proposal.
- (2) If the company holds its shareholder meeting in whole or in part via electronic media, and the company permits you or your representative to present your proposal via such media, then you may appear through electronic media rather than traveling to the meeting to appear in person.
- (3) If you or your qualified representative fail to appear and present the proposal, without good cause, the company will be permitted to exclude all of your proposals from its proxy materials for any meetings held in the following two calendar years.
- (i) Question 9: If I have complied with the procedural requirements, on what other bases may a company rely to exclude my proposal?
(1) Improper under state law: If the proposal is not a proper subject for action by shareholders under the laws of the jurisdiction of the company's organization; Note to paragraph (i)(1): Depending on the subject matter, some proposals are not considered proper under state law if they would be binding on the company if approved by shareholders. In our experience, most proposals that are cast as recommendations or requests that the board of directors take specified action are proper under state law. Accordingly, we will assume that a proposal drafted as a recommendation or suggestion is proper unless the company demonstrates otherwise.
- (2) Violation of law: If the proposal would, if implemented, cause the company to violate any state, federal, or foreign law to which it is subject; Note to paragraph (i)(2): We will not apply this basis for exclusion to permit exclusion of a proposal on grounds that it would violate foreign law if compliance with the foreign law would result in a violation of any state or federal law.
- (3) Violation of proxy rules: If the proposal or supporting statement is contrary to any of the Commission's proxy rules, including §240.14a-9, which prohibits materially false or misleading statements in proxy soliciting materials;
- (4) Personal grievance; special interest: If the proposal relates to the redress of a personal claim or grievance against the company or any other person, or if it is designed to result in a benefit to you, or to further a personal interest, which is not shared by the other shareholders at large;
- (5) Relevance: If the proposal relates to operations which account for less than 5 percent of the company's total assets at the end of its most recent fiscal year, and for less than 5 percent of its net earnings and gross sales for its most recent fiscal year, and is not otherwise significantly related to the company's business;
- (6) Absence of power/authority: If the company would lack the power or authority to implement the proposal;
- (7) Management functions: If the proposal deals with a matter relating to the company's ordinary business operations;
- (8) Relates to election: If the proposal relates to an election for membership on the company's board of directors or analogous governing body;
- (9) Conflicts with company's proposal: If the proposal directly conflicts with one of the company's own proposals to be submitted to shareholders at the same meeting;
- Note to paragraph (i)(9): A company's submission to the Commission under this section should specify the points of conflict with the company's proposal.
- (10) Substantially implemented: If the company has already substantially implemented the proposal;
- (11) Duplication: If the proposal substantially duplicates another proposal previously submitted to the company by another proponent that will be included in the company's proxy materials for the same meeting;
- (12) Resubmissions: If the proposal deals with substantially the same subject matter as another proposal or proposals that has or have been previously included in the company's proxy materials within the preceding 5 calendar years, a company may exclude it from its proxy materials for any meeting held within 3 calendar years of the last time it was included if the proposal received:
(i) Less than 3% of the vote if proposed once within the preceding 5 calendar years;
- (ii) Less than 6% of the vote on its last submission to shareholders if proposed twice previously within the preceding 5 calendar years; or
- (iii) Less than 10% of the vote on its last submission to shareholders if proposed three times or more previously within the preceding 5 calendar years; and
- (13) Specific amount of dividends: If the proposal relates to specific amounts of cash or stock dividends.
- (j) Question 10: What procedures must the company follow if it intends to exclude my proposal?
(1) If the company intends to exclude a proposal from its proxy materials, it must file its reasons with the Commission no later than 80 calendar days before it files its definitive proxy statement and form of proxy with the Commission. The company must simultaneously provide you with a copy of its submission. The Commission staff may permit the company to make its submission later than 80 days before the company files its definitive proxy statement and form of proxy, if the company demonstrates good cause for missing the deadline.
- (2) The company must file six paper copies of the following:
(i) The proposal;
- (ii) An explanation of why the company believes that it may exclude the proposal, which should, if possible, refer to the most recent applicable authority, such as prior Division letters issued under the rule; and
- (iii) A supporting opinion of counsel when such reasons are based on matters of state or foreign law.
- (k) Question 11: May I submit my own statement to the Commission responding to the company's arguments?
- Yes, you may submit a response, but it is not required. You should try to submit any response to us, with a copy to the company, as soon as possible after the company makes its submission. This way, the Commission staff will have time to consider fully your submission before it issues its response. You should submit six paper copies of your response.
- [NOTE: Securities and Exchange Commission, Office of the Chief Counsel, Division of Corporation Finance, MS 3-3, 450 Fifth St. N.W., WA D.C. 20549]
- (l) Question 12: If the company includes my shareholder proposal in its proxy materials, what information about me must it include along with the proposal itself?
(1) The company's proxy statement must include your name and address, as well as the number of the company's voting securities that you hold. However, instead of providing that information, the company may instead include a statement that it will provide the information to shareholders promptly upon receiving an oral or written request.
- (2) The company is not responsible for the contents of your proposal or supporting statement.
- (m) Question 13: What can I do if the company includes in its proxy statement reasons why it believes shareholders should not vote in favor of my proposal, and I disagree with some of its statements?
(1) The company may elect to include in its proxy statement reasons why it believes shareholders should vote against your proposal. The company is allowed to make arguments reflecting its own point of view, just as you may express your own point of view in your proposal's supporting statement.
- (2) However, if you believe that the company's opposition to your proposal contains materially false or misleading statements that may violate our anti-fraud rule, §240.14a-9, you should promptly send to the Commission staff and the company a letter explaining the reasons for your view, along with a copy of the company's statements opposing your proposal. To the extent possible, your letter should include specific factual information demonstrating the inaccuracy of the company's claims. Time permitting, you may wish to try to work out your differences with the company by yourself before contacting the Commission staff.
- (3) We require the company to send you a copy of its statements opposing your proposal before it mails its proxy materials, so that you may bring to our attention any materially false or misleading statements, under the following timeframes:
(i) If our no-action response requires that you make revisions to your proposal or supporting statement as a condition to requiring the company to include it in its proxy materials, then the company must provide you with a copy of its opposition statements no later than 5 calendar days after the company receives a copy of your revised proposal; or
- (ii) In all other cases, the company must provide you with a copy of its opposition statements no later than 30 calendar days before its files definitive copies of its proxy statement and form of proxy under §240.14a-6.
But WAIT, there's more. . . . .
SEC SHAREHOLDER CHECKLIST
The Interfaith Center on Corporate Responsibility has prepared a "Shareholder Proposals for Proxy Statements - Checklist of SEC Requirements":
__Eligibility (SEC Rule 14a-8(b)(1))
- be a record or beneficial owner of at least $2,000 in market value of the common stock of the company you're filing with; and
- have held the company's common stock for at least one year.
__Documentary Support of Beneficial Ownership (SEC Rule 14a-8(b)(2))
The company can request documentary support of your claim of beneficial ownership within 14 days of receipt of the resolution.
- a written statement by the record owner or by an independent third party (such as your broker, if your shares are held in street name), accompanied by your written statement that you intend to continue ownership of such shares through the date of the annual meeting; or
- a declaration or affirmation that you have been the beneficial owner of such shares throughout the required one year period and
- the written statement that you intend to continue ownership of such shares through the date of the annual meeting.
The filing letter can be as brief or as long as you wish. The component parts include:
- introducing yourself as an investor;
- explaining briefly why you're concerned about this issue;
- indicate that you're open to dialogue and hope you can find a way to make the resolution unnecessary.
The legal section of the filing letter is relatively brief. Here is an example:
TO: Corporate Secretary Corporation, USA The (name of investor) is the beneficial owner of ____ shares of stock. We enclose verification of ownership (or verification of ownership will be sent under separate cover). We are filing (or co-filing if this is the case; it is important if you are co-filing to state this so you are not challenged for filing a separate resolution) the enclosed resolution for action at the next stockholder meeting. We submit it for inclusion in the proxy statement under Rule 14 a-8 of the general rules and regulations of the Securities Exchange Act of 1934. We would appreciate your indicating in the proxy statement that we are a sponsor of this resolution. A representative of the filers will attend the stockholders meeting to move the resolution as required by the SEC rules. We will continue to hold shares in the company through the stockholders meeting. Please feel free to call_________if you have any questions about this resolution. Sincerely, Your name Your address Encl. Shareholder Resolution cc: Securities and Exchange Commission Office of the Chief Counsel Division of Corporation Finance MS 3-3 450 Fifth St. N.W. WA D.C. 20549
In the event of a challenge related to the date the resolution was received keep your fax receipt, Federal Express receipt, etc. Include proof of ownership from your broker or Money Manager. Verification of ownership should state you have owned the shares for over a year. The filing letter and the resolution must be received by the company in the mail or by fax by the filing date, but it is much preferable to mail the letter and not let the corporation challenge a faxed resolution.
__Notice (SEC Rule 14a-8(b)(2))
At the time you submit your resolution, you must provide the company with the following:
- your name
- your address
- the number of shares of common stock you hold of record or beneficially,
- documentary support for a claim of beneficial ownership
__Attendance at Meeting (SEC Rule 14a-8(h))
A resolution, if included in the proxy statement, may be presented at the meeting either by the shareholder or by a representative who is deputized to present the proposal on your behalf. If you fail to present the proposal at the meeting, without good cause, the company can omit any proposal from you for the next two years.
__Timeliness (SEC Rule 14a-8(e))
Proposals for the Proxy Statement must be received on or before the date listed in the previous year's proxy statement.
__Number of Proposals (SEC Rule 14a-8(c))
You may submit no more than one proposal in a given year for inclusion in the Proxy Statement.
__Supporting Statement (SEC Rule 14a-8(d))
Your proposal and supporting statement must not exceed 500 words. The supporting statement must be furnished at the time you submit your proposal.
__Identification of Sponsor (SEC Rule 14a- 8(l))
This rule allows corporations not to list the identity of the shareholder sponsor. However, the corporation must then note that this information is available upon request.
[Note: This memo builds on guidelines created by Bank of America in 1990.]
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